Planning and Zoning

MACo sought an unfavorable ruling to House Bill 1241on March 23 before the House Economic Matters Committee. The bill, sponsored by Delegate Dana Stein, would prohibit a variety of uses in a Rural Legacy Area if they exceed 5 acres, including a shopping center, an electric power plant or substation, or any other nonagricultural use. At the hearing, the sponsor offered amendments removing the nonagricultural use provision from the bill.

MACo Associate Director Les Knapp argued that the bill is overly broad and would intrude on local land use authority to manage Rural Legacy Areas. He stated that the bill was targeted at a particular substation project in Baltimore County and that the issue should be resolved locally rather than with a bill that will have a Statewide impact. He also noted that there are processes in place, both with the Public Service Commission (PSC) and local governments, to govern the siting of power plants and substations.

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A MACo panel testified in opposition to House Bill 1107 and Senate Bill 846, before the House Environmental Matters Committee and the Senate Education, Health, and Environmental Affairs Committee on March 11. The bills, sponsored by Delegate Steve Lafferty and Senator Paul Pinsky embody Governor Martin O’Malley’s State of the State proposal to ban the use septic systems in major subdivisions. The bills, entitled the “Sustainable Growth and Agricultural Preservation Act of 2011,” would prohibit the use of septic systems on major subdivisions (defined as 5 or more units), limit subdivision and prohibit re-subdivision on specified parcels, require the Maryland Department of the Environment to approve street line and lot line revisions, and require that minor subdivisions using septics must use nitrogen removal technology. The bill would allow for the use of shared facilities such as package treatment plants.

As previously reported in a Conduit Street post, House Environmental Matters Chair Maggie McIntosh had written a letter to the Governor stating that it was her intention to take the bills to a summer study. But the Governor stated his desire to have a hearing on the bills. Based on the Governor’s request, the both the House and Senate held the bill hearings. The Governor’s March 11 press release contained the following quote:

“By turning a blind eye to the proliferation of septic McMansions, as a State we are in essence feeding donuts to a patient with a heart condition,” said Governor O’Malley. “Septic systems, by their very design, are intended to leak sewage into our Bay and into our water tables. Because they require large lots, their proliferation has the effect of carving up our agricultural and rural land.”

He added, “With the reforms we are proposing, we don’t seek to ban these systems or force homeowners to convert their existing systems. Rather, we aim to rationally curtail their expansion.”

At the bill hearing, MACo Executive Director Michael Sanderson, MACo Associate Director Les Knapp, and Caroline County Planning and Codes Director Katheleen Freeman testified on behalf of MACo. Mr. Sanderson noted MACo’s willingness over the past several years to work through and eventually support a variety of important land use and environmental legislation, but argued that this bill needed further study due to its significant consequences. He also stressed that local officials have a better understanding of the needs and concerns of their citizens than State officials.

Mr. Knapp stated that the bill would unfairly affect rural counties and was premised on a Smart Growth model that did not acknowledge the differences between urban and rural counties. Besides the need for a better rural Smart Growth model, he expressed concern over the cost and practicality of shared facilities, the fiscal impact on counties, the lack of State funding support for both infrastructure and land preservation, the issue over land valuation, and the potential increase in affordable housing. Ms. Freeman expressed concern over the unintended consequences to her county’s cutting edge agricultural preservation program.

Besides the MACo panelists, representatives from Caroline and Carroll Counties also testified in opposition to the bill.

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Today’s Baltimore Sun discusses the “roadblock” facing the Governor’s proposed limits on septic-based development, as the Chair of the House’s Environmental Matters Committee has suggested that the bill be referred for more complete study over the interim. However, contrary to some earlier reports (and the discussion at MACo’s Legislative Committee yesterday), it now appears that the Governor will continue to press for the bill’s passage in this year’s legislative session.

From the Sun coverage:

Del. Maggie McIntosh, head of the House Environmental Matters Committee, wrote O’Malley earlier this week saying that while she agreed with him on the need for tighter curbs on sprawl and on “the proliferation of septic systems,” she was worried the measure would disproportionately affect some counties where most housing is built with on-site sewage treatment.

McIntosh, a Baltimore city Democrat, said she believed the septic limits proposed in the bill needed to be paired with “initiatives that assist farms and rural counties,” two of the constituencies that have complained loudly that the legislation would impoverish them and stifle virtually all growth. McIntosh urged O’Malley to name a task force including those groups, developers and other critics and hash out how septic curbs fit into larger efforts to restore the Chesapeake Bay and preserve farmland from sprawling development.

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O’Malley answered with a letter of his own defending his proposal, while acknowledging, “We need to collectively look at what works in Maryland to address these issues.”

But Shaun Adamec, the governor’s press secretary, said O’Malley stands by the bill he had introduced and intends to testify in support of it at the hearing scheduled March 11 before McIntosh’s committee. And while McIntosh’s desire to study the issue may prevent it from getting out of her committee, Adamec said the governor has not given up on trying to win her and critics over to the need to do something about septics this year — even if it’s a more limited measure.

“Something clearly is better than nothing, but it’s still very much the governor’s intention to outline specifically why it’s so important to take drastic action now,” the governor’s spokesman said.

(An earlier version of this story incorrectly interpreted O’Malley’s letter and earlier remarks by his press secretary to say the governor had yielded to McIntosh’s call for study and would not push for passage of the bill this year.)

MACo has expressed concerns with the far-reaching bill (introduced on the Administration’s behalf as HB 1107 and SB 846, and the Legislative Committee voted yesterday to formally oppose it, even as a study referral seemed imminent.

In the Washington Post, from earlier in the day Wednesday, the Governor’s apparent tone was more conciliatory:

One of Maryland Gov. Martin O’Malley’s only new legislative priorities for the year — a ban on most new septic systems — will not be passed into law during this legislative session, the governor all but conceded on Tuesday.

Responding to a call from a key Democratic lawmaker who said the proposal should be studied further, O’Malley’s office released a letter saying the governor agrees “we need to collectively look at what works in Maryland to address these issue … this should include your ideas for pulling together stakeholders.”

The apparent end of the effort to pass the proposal this year was nearly as quiet as its beginning.

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Suburban areas throughout the nation are working to find effective means to address population increases, changing housing preferences, and growing infrastructure costs, all while making communities more sustainable. The National Center for Smart Growth Research and Education, the Montgomery County Planning Department, and the Urban Studies and Planning Program at the University of Maryland are co-hosting a two-day conference entitled Makeover Montgomery: Innovative Strategies for Rethinking America’s Suburbs Conference. Conference topics include:

Planning tools to counter sprawl

Transportation networks that really work

An analysis of sustainability strategies, from LEED to urban-style development

Designing redevelopment projects on a small scale

Creating pedestrian-friendly town centers

Engaging communities in redevelopment projects

Stormwater regulations and how they affect suburban redevelopment

Makeover Montgomery will be held April 14-16 in Silver Spring, MD. For registration information, please click here.

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MACo Associate Director Leslie Knapp and Howard County Director of Planning and Zoning Marsha McLaughlin were joined by two Maryland Municipal League (MML) representatives in discussing past and present local government land use and environmental priorities before the House Environmental Matters Committee on January 26. Mr. Knapp and the presenters highlighted the significant amount of local government mandates and responsibilities that have been passed onto local governments since 2006, the budget challenges facing local governments, budget and personnel impacts on local planning departments, and future priorities of concern, including: (1) meeting Total Maximum Daily Load (TMDL) goals; (2) increased State resources for infrastructure and land preservation; (3) the future form of PlanMaryland; (4) a different Smart Growth model for rural counties; and (5) moving to a 10-year planning cycle.

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A January 6 Baltimore Sun article discusses a recently released report by the National Center for Smart Growth Reasearch and Education that examines the impact that Smart Growth has had on Maryland’s growth and development patterns over the last 13 years. The report notes that while there has been positive gains in land preservation and development around transit areas, it is unclear if Smart Growth has had a significant impact on reducing sprawl or traffic congestion.

Gerrit Knaap, director of the center, said there are “a few bright spots,” notably the preservation of land and recent promotion of development around transit stops in the Baltimore and Washington areas. But overall, he said, “the evidence suggests that we haven’t really bent the curves [of growth] in ways we hoped we would.” …

Richard E. Hall, the state’s planning secretary, said the study’s inability to find much impact is “not wildly unexpected,” as it echoes previous studies of Smart Growth’s effectiveness. He said it takes years, even decades, to alter land use trends, in part because of the long lead time involved in planning for development and the limited impact government can have on market forces.

“You’re really turning a battleship with a paddle,” he said. “It takes a long time to see differences.” …

John E. Kortecamp, executive vice president of the Home Builders Association of Maryland, said Smart Growth policies haven’t changed development patterns much because state and local governments have never invested enough in schools, transportation and other infrastructure in existing communities to accommodate more people. And he said residents in such areas often balk at denser development because classrooms and roads are already overcrowded, which he called a “Catch-22.” …

Dru Schmidt-Perkins, executive director of the 1000 Friends of Maryland, anonprofit group dedicated to land preservation, contended that the report fails to credit some of Smart Growth’s effects, notably in protecting farmland and forests. She said the biggest problem has been the lack of “follow-through” by local governments to change development plans, zoning and regulations, which forces state government to help pay for roads, sewers, schools and other services in outlying areas rather than making greater use of existing infrastructure. …

Leslie Knapp Jr., associate director of the Maryland Association of Counties, contends that local officials have largely embraced the desirability of protecting farms and open land. But Smart Growth hasn’t been as popular in rural counties, he said, because the state policy calls for more compact development than residents want.

“You don’t see a lot of condos or apartment buildings” in small towns and villages, he said.

Jon Laria, a Baltimore real estate lawyer who is chairman of the state’s growth commission, acknowledged the dilemma, but said he hoped that even with government funding scarce, state and local laws and regulations could be revised to discourage sprawl. He suggested a tradeoff might be possible, with development rules relaxed in areas targeted for growth and more restrictions imposed in rural areas.

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The Department of Housing and Community Development (DHCD) has recommended that local governments should strengthen and enhance their building codes in coastal areas of the State. The Omnibus Coastal Property Insurance Reform Act of 2008 (HB 1353) required DHCD to review current building codes and “develop enhanced codes for coastal regions of the State that promote disaster-resistant construction in the coastal regions of the State.” DHCD released a report of its findings and recommendations on October 1.

The report recommends that Maryland coastal communities adopt the 2010 Maryland Building Performance Standards (MBPS), including the latest versions of the International Building Code (IBC 2009) and the International Residential Code (IRC 2009). Local governments are already required to adopt the MBPS, but may amend based on local conditions. DHCD also recommends that coastal communities follow the IBC and IRC code recommendations when establishing local wind and flood design loads. Finally, DHCD recommends several enhanced designs that should be considered locally, including:

A. Adopt the ICC 600-2008. The International Code Council (ICC) has developed a standard for residential construction in high-wind regions, which is the ICC 600­2008. This standard, along with the 2009 IRC and other referenced codes, specifically deals with design requirements for coastal areas.

B. The Standard for Residential Construction in High-Wind Regions (ICC 600-2008) provides wind-resistant design and construction details for residential buildings. High-wind regions include the hurricane prone regions of the east and gulf coasts, coastal Alaska, and the special wind region of the Columbia River Gorge in Washington and Oregon.

C. ICC 600-2008 includes prescriptive designs for cold-formed steel framing as well as masonry, concrete and wood- framed construction. The standard provides prescriptive requirements and other details of construction for buildings sited in wind climates of 100 to 150 mph in 10 mph increments.

D. For wood frame construction, the referenced document is ANSI/AF&PA Wood Frame Construction Manual (WFCM) 2001 Edition, written by the American Forest and Paper Association.

E. For cold-form steel construction the referenced document is ANSI/AISI/S230 Standard for Cold-Formed Steel Framing-Prescriptive Method for One- and Two-Family Dwellings, written by the American Iron and Steel Institute.

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The Department of Housing and Community Development (DHCD) has released a report detailing the efforts of local governments to waive or reduce building permit and impact fees for lower income housing projects. House Bill 742/Senate Bill 281 of 2008 authorized or clarified the authority of local governments to waive or modify building permit, construction, impact, and rehabilitation fees for affordable housing projects. The bills also required DHCD to report to the General Assembly by October 1, 2010 on which local governments exercised this authority. The bill provisions sunset on September 30, 2011.

DHCD conducted two surveys, one for local governments and one for affordable housing developers. The local government survey was emailed to each county and the 10 largest municiplaities. Sixteen local governments responded.

The two surveys identified that ten local governments have waived fees for projects since 2008, five local governments have variations of fee waiver authority in place, and two local governments are currently considering local fee waiver authority.

The local governments that have waived fees for projects are Cecil, Kent, Calvert, Anne Arundel, Talbot and Somerset Counties as well as the Cities of Baltimore, Cumberland, Westminster, and Princess Anne. Though projects were not identified, Montgomery County waives impact fees for Moderately Priced Dwelling Units as well as certain other affordable housing units. In addition, the City of Laurel and the City of Salisbury have authority in place to waive fees but have not had affordable housing projects come forward to date. The City of Hagerstown identified that the City waives fees but only for government entities and Frederick County identified that it recently suspended a fee waiver program due to budgetary constraints. The program provided a 0% deferred loan for certain building fees.

Respondents from Harford County and Queen Anne’s County stated that they are considering adopting policies, programs, or procedures to waive building, permit or impact fees for lower income housing.

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The Maryland Sustainable Growth Commission held its first meeting on October 26 in Baltimore City. The Commission is a long-term advisory body set to look at land use and growth issues in the State. It replaces the Task Force on the Future for Growth and Development in Maryland which sunsets in December 2010. The Commission consists of 36 members and includes representatives from State and local governments, as well as key stakeholder areas including agriculture, builders, education, and the environment. Jon Laria, a partner at Ballard & Spahr LLP and former chair of the Task Force, serves as the Commission’s chair.

The Chair discussed the recent concept of “sustainable growth” and provided a brief history of land use in Maryland and the activities of the Task Force. He stressed that he wants the Commission to be “action-oriented” but also to cultivate an understanding of growth issues, including an exploration into the land use roles of State and local governments. He also stated that the Commission will strive for a consensus-based approach but given the group’s size, will not unanimity.

The Commission plans to take a tour of the Baltimore/Carroll County region on November 4th and hold its next meeting sometime in December, when it will review its draft work plan for 2011. The Commission will likely meet every other month, with various workgroups meeting in-between. MACo will remain an active participant with both the Commission and any workgroups it may form.

Commission Members introduced themselves and shared a priority that was important to them. Key priorities included:

Develop long-term goals and short-term deliverables for the Commission

Avoid, to the extent possible, narrowly focusing on the concerns of a member’s own constituency/stakeholder group

Educate the public about Smart Growth and growth concepts

Protect agriculture and the State’s rural heritage

Redefine State involvement in land use decisions, including when State funding should be granted

Stress more collaboration, both between local governments and local governments and the State

Harmonize conflicting regulations/policies at both the State and local levels

Understand the impact schools can have on growth

Establish better connections between land use, transportation, and economic development

Address water quality issues and the Chesapeake Bay Total Maximum Daily Load requirements

Ensure a jobs/housing balance and the availability of a broad range of housing options

The Commission also received an introduction and tour of the Maryland Department of Planning’s website.